IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

:

JEFFERY HANNAN, :

:

Plaintiff, :

vs. : CIVIL NO. 05-2863

:

CITY OF PHILADELPHIA, et al., :

:

Defendants. :

__________________________________________:

RUFE, J. August 22, 2007

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on the Defendants’ Motion for Summary

Judgment. After reviewing the Defendants’ Motion [Doc. # 26], the Plaintiff’s Brief in Opposition

thereto [Doc. # 30], the Defendants’ Reply Brief [Doc. # 32], and the Plaintiff’s Sur-Reply Brief

[Doc. # 33], the Court will GRANT IN PART and DENY IN PART the Defendants’ Motion, for

the reasons stated below.

BACKGROUND

A. Introduction

In this civil-rights case filed under 42 U.S.C. § 1983, Officer Jeffery Hannan of the

Philadelphia Police Department (“Department”) is suing the City of Philadelphia (“City”) and three

other Department officials—Commissioner Sylvester Johnson, Inspector William Blackburn, and

Karen Byrd, seeking damages arising out of his transfer and suspension in 2003. He argues that by

transferring him from the elite Narcotics Strike Force (“Strike Force”) to the 18th District, a patrol

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 1 of 33
 Elliot & Frantz, Inc. v. Ingersoll-Rand Co., 457 F.3d 312, 318 (3d Cir. 2006). 1

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division, and then later suspending him for 15 days without pay, the City and the Department

officials violated several of his constitutional and statutory rights. 

At its essence, this case arises from Hannan’s perception that Department

Commissioner Sylvester Johnson disciplined him on illegitimate grounds. Although Commissioner

Johnson claims that he disciplined Hannan for conduct unbecoming of a police officer, Hannan

argues that he was transferred and suspended as an act of retaliatory and racial animus. Because this

is a motion for summary judgment, the Court views the factual record in the light most favorable to

Hannan, the non-moving party. 

1

B. Facts

Officer JefferyHannan has been an officer with the Department since March 1, 1993.

Hannan began his police service as a patrol officer in the 14th District, where he eventually became

a member of the Narcotics Enforcement Team. In 1998, Hannan approached Commissioner Johnson

(then Deputy Commissioner), and expressed interest in an appointment to the Strike Force, an elite

unit that operates city-wide rather than in a single patrol district. Commissioner Johnson appointed

Hannan to the Strike Force in March of 1998, where he excelled. He became a speaker at judicial

conferences, where he would educate judges on the illicit narcotics industry. In 2000, he also

became an instructor at Top Gun, an annual narcotics-enforcement training program at the National

Guard Training Center, a military base in Fort Indiantown Gap, Pennsylvania. 

The incident that underlies this litigation occurred while Hannan was serving as a Top

Gun instructor in October 2002. One evening during the training program, before a day off, Hannan

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 2 of 33
 Hannan testified at his deposition that he could not remember how much he had had to drink that night. 2

Hannan Dep., 32:21, Oct. 12, 2006.

 Id. 22:13. 3

 Id. 22:22. 4

 Id. 23:22. 5

 Id. 24:3. 6

 Id. 

7

 Id. 24:8. 8

 Id. 24:12. 9

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and several other off-duty instructors went drinking at a local bar, later returning to “a party back 2

at the rooms in the guy’s [sic] building.” Hannan arrived at the party with Janine Miller, another 3

Top Gun instructor who at the time was employed by the Office of the Pennsylvania Attorney

General. Because Miller did not want to be “the only girl here,” Hannan agreed to walk with Miller 4

back to the women’s dormitory to invite another female officer named Donna to come along. While

Donna was getting ready, Hannan and Miller stood in the common area, and Miller stooped down

to get some drinks out of the refrigerator. 

Hannan stated that Miller “was teasing [him] throughout the night about something

she had of mine.” Upon realizing that his cell phone was missing, Hannan went into Miller’s 5

doorway, where he “fell over her.” Then, they “were rolling on the ground.” Hannan said that 6 7

when he told Miller that he needed the cell phone to call his wife, Miller seemed “a little irate” upon

learning that he was married. Then, Donna walked into the room. Seeing them on the floor, she 8

said “do you guys want me to leave?” Hannan and Miller said “no,” then got up, and went with 9

Donna back to the party in the men’s building, where they stayed for about an hour. Hannan

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 3 of 33
 Id. 24:24. 10

 Id. 25:11. 11

 Pl.’s Exs. in Support of Undisputed Facts [Doc. # 31], Ex. 4. 

12

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maintains that “[e]verybody was laughing and having a good time.”10

When Hannan left the party, he went directly to hisroom. Upon realizing that he still

did not have his cell phone, he went back to the party to look for it. Realizing that “the girls had

left,” he “went over to their building, knocked on the door, [and said] somebody give me my

phone.” When no one let Hannan in, he returned to his room and went to bed. 11

The next day, on his day off, Hannan received word at about 2:30 p.m. that the

Colonel in charge of the military base wanted to speak with him. Hannan then went to the Colonel’s

office, where the Colonel told him that Janine Miller had filed a police report, claiming that Hannan

had sexually assaulted her. The Colonel then told Hannan that he insisted that both he and Miller

leave the military base. 

Miller’s account of the events, documented in a police report filed with the Fort

Indiantown Gap Police Force, alleged:

[On the night in question], someone from the Top Gun Academy

came into [Miller’s] room and tried to assault her. Janene [sic] Miller

stated that while she was getting something out of her refrigerator,

someone walked into her room and grabbed her from behind. The

person then pinned her onto the ground and started to rub their hands

up and down her body. She identified this person as Jeff, (someone

that was in her class). She told him to get off of her, he refused. She

immediately tried pushing him away from her, but was unsuccessful.

Donna M. O’lonnell [sic] (7-18-65) entered the room and noticed that

Jeff was on top of her. Donna asked what was gong [sic] on? Janene

[sic] Miller yelled for help, so Donna grabbed Jeff’s shoulder and

pulled him off of her.12

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 4 of 33
 Johnson Dep. 8:5–7, Oct. 24, 2006. 13

 Id. 10:21–22. 14

 Id. 14:18–19; 15:7. CDA is a method that the Commissioner may use to discipline officers directly, 15

without relying on the findings of a Police Board of Inquiry hearing. 

 Id. 17. 16

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On that same day, after Hannan and Miller left Fort Indiantown Gap, Commissioner

Johnson received a phone call from the Colonel. Commissioner Johnson stated in his deposition that

the Colonel “told me that . . . the person, who we had sent up there to teach a class, was intoxicated

and he tried to rape one of the women up there.” Commissioner Johnson then told Deputy 13

Commissioner of Operations Robert Mitchell that there “may be a possible rape” and that he wanted

it investigated.14

When Hannan returned to duty on the Strike Force in Philadelphia, his supervisor,

Captain William S. Broadbent, Jr., also requested that the Department’s Internal Affairs Division

open an investigation into the events at Fort Indiantown Gap. Internal Affairs then assigned Captain

Broadbent to conduct the investigation. Defendant William Blackburn, Chief Inspector ofthe Strike

Force, also became involved in the investigation. 

When Broadbent completed his investigation, he recommended that no discipline be

imposed against Hannan. Broadbent then sent the investigation packet, along with his

recommendation, to Commissioner Johnson. According to Commissioner Johnson, Mitchell later

recommended that Hannan be fired through Commissioner’s Direct Action (“CDA”). Mitchell 15

made this recommendation after both he and Commissioner Johnson had reviewed Captain

Broadbent’s investigation.16

Broadbent also sent the packet to Captain Deborah Mateffy of the Charging Unit. The

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 5 of 33
 Pl.’s Statement of Undisputed Facts, ¶ 45. 17

 Hannan Dep. 52–53. 18

 Id. 53:8. 19

 Pl.’s Exs. in Support of Undisputed Facts [Doc. # 31], Ex. 14. 

20

 Id. 21

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Charging Unit—which is a component of the Police Board of Inquiry (“PBI”)—is the body that files

formal disciplinary charges against members of the Department. Captain Mateffy, whose duty it is

to review cases and decide whether to file disciplinary charges, reviewed Captain Broadbent’s

investigation. Captain Mateffy determined that there was insufficient justification for charges

against Hannan. 

Despite her determination that no charges should be filed with the PBI, Captain

Mateffy “was instructed from ‘someone of higher rank’” to file the charges. The charges accused 17

Hannan of conduct unbecoming of a police officer. On March 18, 2003, Captain Broadbent

presented Hannan with the charges, and explained that Hannan had the choice either to sign the

charges “guilty” or “not guilty,” or else agree to a transfer out of the Strike Force. Hannan signed

18

the charges “not guilty.” 

19

Pursuant to Hannan’s “not guilty” claim, the PBI then held a formal proceeding

before a three-member panel on June 5, 2003, to determine whether Hannan’s conduct at Top Gun

constituted conduct unbecoming of an officer. That same day, the PBI panel unanimously voted to

find Hannan not guilty. In a memorandum to Commissioner Johnson dated June 6, 2003, the PBI 20

informed the Commissioner that the panel “found the testimony of P.O. Hannan to be more credible

than that of the complainant, Janene [sic] Miller, and other witnesses called on her behalf.” Despite 21

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 6 of 33
 Johnson Dep. 35:5. 22

 Pl.’s Statement of Undisputed Facts ¶ 54. 23

 Hannan Dep. 13:11. 

24

 Pl.’s Statement of Undisputed Facts ¶ 59. 25

 Defs.’ Exs. to Reply Br. [Doc. # 34], Ex. 8. 26

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the PBI’s conclusions, the Commissioner decided that Hannan “should be disciplined, no matter

what the trial board said.” Shortly thereafter, Commissioner Johnson transferred Hannan from the 22

Strike Force to the 18th District. Several months later, he issued Hannan a 15-day suspension 23

without pay. 

 The transfer and suspension harmed Hannan both financially and emotionally.

Financially, Hannan’s income level dropped substantially. He lost opportunities to work significant

overtime as a member of the Strike Force. And because the suspension and transfer tended to

corroborate his undeserved reputation as a “groper,” and took away the elite position in which he 24

had excelled, Hannan “suffered depressions, spells of crying and anxiety,” which ultimately resulted

in outpatient medical treatment at Friends Hospital. 

25

Hannan, maintaining his innocence throughout all these events, grieved his discipline

through the procedures of the collective-bargaining agreement between the police union and the City.

This grievance process culminated in arbitration under the auspices of the American Arbitration

Association. On May 17, 2005, the arbitrator, finding that the Commissioner had transferred and

suspended Hannan without just cause, concluded that the City had violated the terms of the

collective-bargaining agreement. The arbitrator rescinded the transfer and suspension, and awarded

26

Hannan damages to compensate him for all wages, benefits, and overtime lost during his absence

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 7 of 33
 Id. at 23. 27

 Id. 28

 Fed. R. Civ. P. 56(c). 29

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from the Strike Force. The arbitrator also ordered the City to expunge all of the records of the 27

wrongful discipline.28

Hannan filed this suit shortly thereafter, seeking damages for violation of his

Constitutional and statutory rights. Hannan has named the City, Commissioner Johnson, Inspector

Blackburn, and Karen Byrd (the Commissioner’s secretary) as Defendants. Hannan is Caucasian and

the individual Defendants are all African-American. Hannan asserts claims under § 1983 for First

Amendment retaliation, depriving him of property and liberty without due process of law, violating

his right to equal protection under the law, and for constitutional violations arising out of official

City policy. Hannan further asserts claims for conspiracy to violate his civil rights under 42 U.S.C.

§ 1985(3), violation of the Pennsylvania Mental Health Procedures Act, and for intentional infliction

of emotional distress. This Court has subject-matter jurisdiction under 28 U.S.C. § 1331 and 28

U.S.C. § 1343, and supplemental jurisdiction over the state-law claims under 28 U.S.C. § 1367.

DISCUSSION

A. Legal Standard

Under Federal Rule of Civil Procedure 56(c), the Court should grant summary

judgment to the moving party if “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law.” In making this

29

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 8 of 33
 Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007) (internal citation omitted). 30

 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 31

 U.S. Const. amend. I. 32

 DeHart v. Horn, 227 F.3d 47, 50 (3d Cir. 2000). 33

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determination, the Court “‘must view the facts in the light most favorable to the nonmoving party

and draw all inferences in that party’s favor.’”30

Although this standard of review is designed to give the nonmovant the benefit of

every doubt, he must still produce enough evidence to persuade a reasonable jury to find for him at

trial. Specifically, “the plain language of Rule 56(c) mandates the entry of summary judgment . . .

against a party who fails to make a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear the burden of proof at trial.” 

31

B. Review of Hannan’s Claims

1. First Amendment Retaliation

Under the First Amendment, “Congress shall make no law . . . abridging . . . the right

of the people . . . to petition the Government for a redress of grievances.” This prohibition is 32

binding on state governmental bodies as well. Hannan argues that by signing the charges “not 33

guilty,” thus triggering a hearing before the PBI, that he was in effect requesting a name-clearing

hearing, which amounts to a petition to the City for redress of his smeared reputation. Hannan

claims that by transferring and later suspending him, Commissioner Johnson retaliated against him

for exercising his First Amendment rights.

Under the law of the Third Circuit, “[t]o state a First Amendment retaliation claim,

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 9 of 33
 Hill v. Borough of Kutztown, 455 F.3d 225, 243 (3d Cir. 2006). 34

 Id. 35

 Calif. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972). 36

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a plaintiff must allege two things: (1) that the activity in question is protected by the First

Amendment, and (2) that the protected activity was a substantial factor in the alleged retaliatory

action.” As to the first element, Defendants argue that Hannan signing the charges did not amount 34

to an act protected by the First Amendment. As to the second element, Defendants argue that

Hannan has not set forth sufficient evidence such that a jury could reasonably find a causal link

between Hannan’s request for a name-clearing hearing and the subsequent discipline.

a. Protected Activity

Turning to the first element, Defendants argue that Hannan’s “not guilty” signature

on the charges is not protected conduct, because it does not constitute a petition to the government

for a redress of grievances. Pointing out that Commissioner Johnson has the ultimate say in all

police disciplinary matters and that the PBI verdict does not bind the Commissioner, Defendants

argue that a favorable finding at the PBI does not actually have the power to redress Hannan’s

grievance. Indeed, it is true that the PBI result did not fully vindicate Hannan, since the

Commissioner went on to discipline him despite the PBI’s recommendation against doing so.

Nonetheless, the Court concludes that Hannan’s choice to opt for a non-binding name-clearing

hearing constituted a “petition” under the First Amendment. 

The Court notes preliminarily that this is a question of law. The Supreme Court has 35

defined acts under the Petition Clause very broadly, and indeed has held that “the right to petition

extends to all departments of the government.” Thus, citizens have the constitutional right to seek 36

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 10 of 33
 E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) (advertising campaign

37

designed to influence legislation protected under Petition Clause).

 United Mine Workers v. Pennington, 381 U.S. 657 (1965) (labor union’s efforts to persuade Secretary of 38

Labor to change minimum-wage rules protected under Petition Clause).

 Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 741 (1983) (“[T]he right of access to the courts 39

is an aspect of the First Amendment right to petition the Government for redress of grievances.”). 

 30 F.3d 424 (3d Cir. 1994). 40

 See, e.g., Altman v. Hurst, 734 F.2d 1240, 1244 n.10 (7th Cir. 1984) (police officer reassigned as an act

41

of retaliation for filing a civil suit against his employer not protected under the Petition Clause, because “a private

office dispute cannot be constitutionalized merely by filing a legal action”). 

 San Filippo, at 442. 42

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redress from a legislature, from executive officials, and through the judicial process, without 37 38 39

fear of reprisal by the government. Additionally, the Third Circuit has given broad scope to the

Petition Clause in the context of employee grievances against an employer. 

In San Filippo v. Bongiovanni, the Third Circuit held that a fired college professor’s 40

lawsuits and employee grievances against his university employer could be protected under the

Petition Clause, even though they did not address matters of public concern. In so holding, the Third

Circuit explicitly parted ways with the other circuit courts to have addressed the question, which

have all refused to recognize a private employee grievance against a government employer as

protected activity under the Petition Clause. The San Filippo court stated that “when

41

government—federal or state—formally adopts a mechanism for redress of those grievances for

which government is allegedly accountable, it would seem to undermine the Constitution’s vital

purposes to hold that one who in good faith files an arguably meritorious ‘petition’ invoking that

mechanism may be disciplined for such invocation by the very government that . . . has given the

particular mechanism its constitutional imprimatur.” 

42

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 11 of 33
 Bill Johnson’s Restaurants, Inc., 461 U.S. at 743. 43

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Although the Defendants argue that Hannan’s insistence on a PBI hearing is not such

a “formal mechansim,” because it is not binding on Commissioner Johnson, the Court nonetheless

believes that the law in this Circuit informs the Court’s decision that Hannan was attempting to

vindicate the same First Amendment values implicated by a more formal petition for redress. The

Supreme Court has stated, in a decision interpreting the Petition Clause, that “[t]he first amendment

interests involved in private litigation” include “compensation for violated rights and interests, the

psychological benefits of vindication, [and] public airing of disputed facts.” Although the PBI 43

hearing did not have the power to compensate Hannan for any violated rights, Hannan has

specifically stated that he requested the PBI hearing to clear his name—which implicates both of the

other First Amendment values that the Supreme Court recognized are inherent in private litigation.

Thus, based on the Third Circuit’s broadened scope of the Petition Clause in San Filippo to include

private employee grievances, and recognizing Hannan’s request for a PBI hearing as implicating

First Amendment values recognized by the Supreme Court, the Court concludes that Hannan’s

request for a PBI hearing as a name-clearing device is protected by the Petition Clause. 

b. Substantial Factor

Turning to the second element of the retaliation claim, Defendants argue that a

rational jury could not reasonably find that his request for a name-clearing hearing was a substantial

factor in the discipline—i.e., that his request for a hearing caused Commissioner Johnson to

discipline him. In support, Defendants argue only that causation cannot be inferred simply by the

temporal proximity between the protected act and the subsequent discipline. In other words, the fact

that Commissioner Johnson meted out punishment shortly after the PBI verdict is alone not enough

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 12 of 33
 See, e.g., Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d Cir. 2003) (noting that timing of 44

retaliation, without additional evidence, must be “unusually suggestive” to support inference of causation). 

 Id. 45

 See Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997) (in determining causation in 46

retaliation case, “proffered evidence, looked at as a whole, may suffice to raise the inference.”); see also Farrell v.

Planters Lifesavers Co., 206 F.3d 271, 279–81 (3d Cir. 2000) (collecting retaliation cases illustrating a variety of

circumstances under which record as a whole was held to support a prima facie case of causation).

 Hannan Dep. 52:19–20. 47

 Id. 

48

 Id. 72:24. 49

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to prove causation.

It is true that under Third Circuit precedent, timing between protected activity and

discipline may not alone be enough to permit an inference of retaliation. Nonetheless, the Third 44

Circuit looks to “the context of the record as a whole” to determine whether a jury could find the 45

necessary causal link to prove retaliation. Thus, this Court must look at the totality of the 46

circumstances to determine whether a rational jury could reasonably find that Hannan’s request for

a name-clearing hearing played a substantial role in his ultimate discipline. 

For example, Hannan testified in his deposition that despite Captain Mateffy’s

recommendation that Hannan not be charged at the PBI, the Department leadership insisted that

Hannan be charged, unless he agreed to be transferred to a patrol district. Hannan believed that he 47

could choose a district for transfer, or else face the charges. After the PBI verdict, however,

48

Commissioner Johnson transferred Hannan to the 18th District—further from his home

geographically than any other district. Moreover, three months later, on September 18, 2003, 49

Commissioner Johnson executed a Notice of Suspension, suspending Hannan from duty without pay

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 13 of 33
 Defs.’ Exs. To Reply Br. [Doc. # 34], Ex. 6. 50

 Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005). 51

 Johnson Dep. 35:7–14. 52

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for 15 days. Therefore, not only did Hannan receive punishment despite the not-guilty PBI verdict, 50

but he received a more severe punishment. 

Furthermore, a neutral arbitrator later determined that Commissioner Johnson had

disciplined Hannan without just cause. While this does not directly tend to prove a causal link, it

casts doubt on the Commissioner’s purported reason for disciplining him, thus suggesting that there

must be another reason, e.g., retaliation. This evidence, while not conclusive, is sufficiently

suggestive of retaliatory animus to allow a jury to reasonably conclude that Commissioner Johnson

meted out discipline against Hannan as an act of retaliation. 

Defendants point out that an employer “may defeat the employee’s [retaliation] claim

by demonstrating that the same adverse action would have taken place in the absence of the protected

conduct.” Accordingly, they argue that Hannan cannot prove causation, because Commissioner 51

Johnson would have disciplined Hannan had he never requested a PBI hearing. The Defendants cite

Commissioner Johnson’s deposition testimony, in which he states:

The fact that he was up there as an instructor for the Philadelphia

Police Department, the fact that he was in that room by his own

admission, that he had been drinking on the form of being

intoxicated, the fact that he’s in the women’s dormitory at that time

of night, the fact that he winds up on the floor looking for his cell

phone or not, I thought he should be disciplined.52

In other words, if Commissioner Johnson was planning to discipline Hannan, no matter what the PBI

said, then there cannot have been any retaliatory motive. 

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 14 of 33
 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (at summary judgment, court 53

“may not make credibility determinations or weigh the evidence”).

 Compl. ¶ 20. 

54

 Id. 

55

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While this might in fact be true, the Court would have to impermissibly credit the

deposition testimony of Commissioner Johnson as true at the summary-judgment stage—a stage at

which the facts are to be viewed in the light most favorable to the non-moving party. Indeed, this

53

credibility determination is all the more important in light of the fact that Defendants have not

pointed to any corroborating evidence to support Johnson’s testimony—for example, an internal

Department memorandum drafted before the PBI hearing—that could document the prospective

punishment to be imposed. Moreover, Commissioner Johnson did not explain in his deposition the

reason for imposing a harsher discipline (transfer to 18th District, plus 3-week suspension) after the

PBI hearing, as compared to the discipline originally proposed (transfer to a patrol district of

Hannan’s choice). 

Therefore, the Court is satisfied that based on the totality of the circumstances, a

rational jury could conclude that the Commissoner retaliated against Hannan for insisting on a nameclearing hearing before the PBI. The motion for summary judgment, therefore, will be denied on this

claim with respect to Commissioner Johnson.

Turning to the evidence of retaliation on the part of Defendant Karen Byrd, there is

insufficient evidence to present retaliation claims against her to the jury. In his Complaint, Hannan

alleged that Byrd was “the person that actually signed the 15-day suspension notice.” He also 54

alleges that she “signed the name of Sylvester Johnson, doing so with actual or apparent authority

of Defendant Johnson.” There is no record evidence, however, that Byrd did anything other than 55

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 15 of 33
 Id. ¶ 21. 56

 U.S. Const. amend XIV, § 1. 

57

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a ministerial act in signing the suspension form. Because no evidence tends to prove that Byrd

herself had a retaliatory motive in signing the Commissioner’s signature on the suspension, she is

entitled to judgment as a matter of law on this claim.

As for Inspector Blackburn, there is similarly a lack of evidence to prove that he

engaged in retaliation. According to the Complaint, Inspector Blackburn is “in Plaintiff’s chain-ofcommand,” and Hannan suggests that Blackburn manipulated the internal charging process to make 56

sure that Hannan was charged, despite Captain Mateffy’s decision not to file charges with the PBI.

However, there is no evidence that Blackburn participated in the ultimate transfer and suspension

after Hannan requested his name-clearing hearing. Therefore, because retaliation requires a showing

of a causal link between protected activity and adverse action, there is insufficient evidence for a jury

to find that Inspector Blackburn is liable for First Amendment retaliation. Thus, Inspector Blackburn

is entitled to judgment as a matter of law on this claim. 

 

2. Due Process

Under the Fourteenth Amendment, “[n]o state shall . . . deprive any person of life,

liberty, or property, without due process of law.” Hannan argues that because Commissioner 57

Johnson suspended and transferred him against the unanimous recommendation of the PBI, that he

was deprived of his liberty and property without due process of law.

The Third Circuit has held that “[t]o state a claim under § 1983 for deprivation of

procedural due process rights, a plaintiff must allege that (1) he was deprived of an individual

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 16 of 33
 Hill v. Borough of Kutztown, 455 F.3d 225, 233 (3d Cir. 2006). 58

 The parties have not briefed the Court on this issue. The Supreme Court has stated that “[p]roperty 59

interests are not created by the Constitution, they are created and their dimensions are defined by existing rules or

understandings that stem from an independent source such as state law . . . .” Cleveland Bd. of Educ. v. Loudermill,

470 U.S. 532, 538 (1985) (internal quotation and citation omitted). The parties have not pointed to any source of

law—Pennsylvania state law or otherwise—that defines whether Hannan’s right to maintain his position within the

Department is a protected property entitlement. Therefore, the Court has not addressed the issue.

 McDaniels v. Flick, 59 F.3d 446, 454 (3d Cir. 1995) (quoting Cleveland Bd. of Educ. v. Loudermill, 470 60

U.S. 532, 546 (1985)).

 Id. 

61

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interest that is encompassed within the Fourteenth Amendment’s protection of ‘life, liberty, or

property,’ and (2) the procedures available to him did not provide ‘due process of law.’” Hannan

58

posits that his job in the Strike Force constituted a property interest, and that his reputation as a

police officer constitutes a liberty interest, both of which he was deprived of without due process.

Assuming arguendo that Hannan’s transfer and suspension deprived him of liberty

and property interests, Hannan has not presented evidence for a reasonable jury to conclude that

59

those deprivations occurred without due process of law. The Third Circuit has stated that in a

government employee’s employment-termination case, due process provides that “‘the tenured

public employee is entitled to oral or written notice of the charges against him, an explanation of the

employer’s evidence, and an opportunity to present his side of the story.’” In other words, “due 60

process requires some kind of a hearing prior to the discharge of an employee who has a

constitutionally protected property interest in his employment.” Hannan does not dispute that his

61

hearing before the PBI amounted to a valid pre-deprivation hearing—on the other hand, he argues

that Commissioner Johnson, by not adhering to the PBI’s recommendation, denied him due process.

Hannan makes much of the idea that by disciplining him despite the PBI’s findings,

Commissioner Johnson violated due process by acting arbitrarily. He asserts that there are no

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 17 of 33
 Abdulrahman v. Ashcroft, 330 F.3d 587, 596 (3d Cir. 2003) (citing Schweiker v. McClure, 456 U.S. 62

188, 195 (1982)).

 59 F.3d 446 (3d Cir. 1995). 63

 Id. at 460 (quoting Zinernon v. Burch, 494 U.S. 113, 126 (1990)). 

64

 Id. 65

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documented cases of an officer from the Department being acquitted before the PBI, yet still

disciplined by the Commissioner afterward. The Court interprets this as an argument that

Commissioner Johnson was not an impartial decisionmaker. 

“[D]ue process demands impartiality on the part of those who function in judicial or

quasi-judicial capacities.” The Third Circuit, however, has also held that neutral post-deprivation 62

proceedings can cure any such bias on the part of the decisionmaker. In McDaniels v. Flick, the 63

Third Circuit held that a fired college professor could not demonstrate a due-process violation—even

if the decision to fire was the product of a sham proceeding—until he exhausted his post-deprivation

remedies under a collective-bargaining agreement. The court, reviewing similar decisions from other

circuits, concluded that in the employment-termination context, a due-process violation “‘is not

complete when the deprivation occurs; it is not complete unless and until the State fails to provide

due process.’” Accordingly, the court held that “a discharged employee cannot claim in federal

64

court that he has been denied due process because his pretermination hearing was held by a biased

individual where he has not taken advantage of his right to a post-deprivation hearing before an

impartial tribunal that can rectify any possible wrong committed by the initial decisionmaker.” 

65

Here, Hannan availed himself of such post-deprivation proceedings. Therefore, even

if Hannan’s pre-deprivation process was tainted by an impartial decisionmaker, he received a postdeprivation hearing designed to remedy that defect. The Third Circuit has held that a grievance

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 18 of 33
 Dykes v. SEPTA., 68 F.3d 1564, 1571 (3d Cir. 1995). 66

 U.S. Const. amend XIV, § 1. 

67

 The Court will dispose of two of these theories in short order. First, Hannan suggests that the 68

Defendants violated his equal-protection rights by denying him due process. The Court, however, has already

reviewed Hannan’s claim for relief brought directly under the due-process clause, and therefore will not undertake

another due-process analysis “through” the equal-protection clause. Hannan does not cite to any legal

authority—nor does the Court independently know of any—that establishes a separate due-process analysis through

the lens of the equal-protection clause. 

Second, Hannan also now raises, for the first time, an equal-protection claim under the Pennsylvania

Constitution. Hannan did not include such a claim in his Amended Complaint, and therefore it is unfair to the

Defendants to have them defend the claim now, after discovery is complete and their respective cases have been

prepared. Thus, the Court will not entertain this claim. See Satterfield v. Borough of Schuylkill Haven, 12 F. Supp.

2d 423, 433 (E.D. Pa. 1998) (dismissing claim raised for the first time in a summary-judgment brief, because “the

Plaintiff failed to notify the opposing parties and the court of such a claim on a timely basis”). 

- 19 -

mechanism in a collective-bargaining agreement—such as the one that Hannan used in this

case—can adequately substitute for state-provided post-termination proceedings, provided that those

proceedings comply with due process. And Hannan does not argue that the grievance proceedings 66

did not provide due process—in fact, he was put back into his rightful position after the arbitration.

Therefore, under the Third Circuit’s precedents, the Court finds no basis upon which a reasonable

jury could find that he was denied of his due-process rights. 

3. Equal Protection

Under the Fourteenth Amendment, “[n]o state shall . . . deny to any person within its

jurisdiction the equal protection of the laws.” Hannan’s equal-protection claims (one of which he 67

styles as a claim for “race discrimination,”) are based on the theory that Commissioner Johnson, who

is African-American, intentionally treated Hannan more harshly than other similarly-situated

African-American officers, without any rational basis. Although Hannan raises three theories of

recovery under the equal-protection clause, the only plausible one is that Hannan falls under the 68

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 19 of 33
 528 U.S. 562 (2000). 69

 Hill, 455 F.3d at 239. 

70

 Pl.’s Opp’n [Doc. # 30], at 11. 71

 Pl.’s Statement of Undisputed Facts ¶ 66. 72

 Hannan Dep. 111–25. 73

- 20 -

“class of one” doctrine announced by the Supreme Court in Village of Willowbrook v. Olech.69

Under the class-of-one theory, a plaintiff can establish a violation of the equal-protection guarantee

if he can show that “(1) the defendant treated him differently than others similarly situated, (2) the

defendant did so intentionally, and (3) there was no rational basis for the difference in treatment.”70

The Court concludes that Hannan has not produced a quantum of evidence that could

persuade a reasonable jury that he was intentionally treated any harsher than his colleagues. In his

Opposition Brief, Hannan states that he “produced the names of black NSF officers who engaged

in misconduct, such as stealing drug buy or confiscated drug money, but these persons were allowed

to return to NSF following resolution of the alleged misconduct.” Hannan then cites to his 71

Statement of Undisputed Facts, which provides:

Hannan is the only white officer to have either been alleged or

actually found to have engaged in misconduct and was removed from

NSF and kept from returning to NSF. However, there are black male

and female officers who have been accused or actually committed

misconduct, including stealing a safe from the NSF building, which

safe containing [$]8900 in confiscated drug money, and all of these

officers were removed from NSF but later returned. 

72

This paragraph in the Statement of Undisputed Facts then cites fifteen pages of Hannan’s deposition

testimony. 

73

After reviewing the cited pages of Hannan’s deposition, the Court finds only one

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 20 of 33
 Id. 112:2–11. 74

 Id. 75

 Id. 121:17–122:23. 76

- 21 -

reference to similarly-situated officers. According to the testimony, Officer Brenda Jones and one

of her colleagues, both African-American females, were suspended from the Strike Force after

making a racial slur to a Caucasian waitress. The testimony suggests that they were later reinstated 74

to the Strike Force without the necessity of going through the grievance process. In this section 75

of the deposition, these are the only two officers specifically mentioned. 

Hannan also explains his theory that the top leadership in the Department, which he

claims is mostly African-American, favors putting other black officers in the Strike Force, ahead of

more qualified Caucasian officers, although he provides no supporting details. He then states: 76

I actually wanted to—I wanted all the PBIs and the decisions since

Johnson’s been Commissioner. I requested that through my lawyer.

I—I had asked Captain [Mateffy of the Charging Unit] personally if

she had records of that. And she told me, yes, they’re there. So, we

can actually pull, which I thought would have been a great idea,

which we have some in the Seitzer Green report. But if we broke

each one down, compared to race, gender, I think it would be

shocking.

This testimony, if presented at trial, is not sufficient to persuade a reasonable jury that

Hannan was purposefully treated differently than his fellow officers. Again, the only specific

evidence is the Brenda Jones anecdote, unsupported by any documentary evidence or corroborating

deposition testimony. The other support is merely Hannan’s personal “hunch” that he is treated more

harshly because he is white. The Court is not obligated to sift through the entire record to see if

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 21 of 33
 Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470 (2d Cir. 2002); see also Dawley v. Erie 77

Indem. Co., 100 Fed. Appx. 877, 881 (3d Cir. 2004) (“Rule 56 does not oblige a district court to scour the entire

record to find a factual dispute.”).

 Answer to Am. Compl., at 21. 78

 Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 79

(1982)).

 Saucier v. Katz, 533 U.S. 194, 201 (2001). 80

- 22 -

Hannan has produced evidence supporting this claim. The only evidence that he cites in his briefs 77

could not convince a rational trier of fact that he was intentionally treated differently without a

rational basis. Thus, the Defendants are entitled to judgment as a matter of law on this claim as well.

 

4. Qualified Immunity

Defendants raise the affirmative defense of qualified immunity in their Answer. The 78

doctrine of qualified immunity “is intended to shield government officials performing discretionary

functions, including police officers, ‘from liability [for] civil damages insofar as their conduct does

not violate clearly established statutory or constitutional rights of which a reasonable person would

have known.’” Because only one constitutional claim will remain after the Court’s present 79

ruling—namely a First Amendment-retaliation claim against Commissioner Johnson—the Court will

confine its qualified-immunity analysis to that claim.

Under Supreme Court precedent, the question of whether an officer is shielded by

qualified immunity is a two-part test. First, the Court asks, “[t]aken in the light most favorable to

the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional

right?” Second, the Court asks “whether the right was clearly established,” that is, “whether it

80

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 22 of 33
 Id. at 201–02. 81

 See id. at 202 (early qualified-immunity determination appropriate to “‘avoid excessive disruption of 82

government and permit the resolution of many insubstantial claims on summary judgment’”) (quoting Harlow, 457

U.S. at 818). 

 See, e.g., Johnson v. Jones, 515 U.S. 304 (1995) (dismissing interlocutory appeal from district court’s 83

pretrial decision to deny three police officers qualified immunity, because there was a factual dispute as to whether

they were present at the beating that was the subject of the lawsuit). 

 Kopec, 361 F.3d at 776 (emphasis added). 84

- 23 -

would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”81

Applying this two-part test, the Court notes that the first part of the Saucier test is

satisfied. The Court has already determined in its summary-judgment analysis that a reading of the

record in the light most favorable to Hannan supports a claim of First Amendment retaliation against

the Commissioner. Turning to the second prong of Saucier, however, the Court views the question

of whether Commissioner Johnson’s conduct was objectively reasonable under the circumstances

as dependent on historical facts that must be resolved at trial. 

The Supreme Court has recognized that determination of the objective reasonableness

of an officer’s conduct, while often a question of law for the reviewing court, sometimes requires

82

the resolution of facts by a jury. The reasonableness of certain constitutional violations can 83

frequently be determined by the Court—for example, with excessive-force claims brought under the

Fourth Amendment. In those cases, “[t]he test of reasonableness . . . is whether under the totality

of the circumstances, the officers’ actions are objectively reasonable in light of the facts and

circumstances confronting them, without regard to their underlying intent or motivations.” But in

84

cases where the officer’s motive is a question of historical fact that is inseparable from merits of the

underlying claim, the courts have recognized the appropriateness of allowing a jury to decide

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 23 of 33
 See, e.g., Monteiro v. City of Elizabeth, 436 F.3d 397 (3d Cir. 2006) (in First Amendment-retaliation

85

case, question of whether defendant’s motivation in ejecting town councilmember was constitutionally permissible

was properly reserved for the jury); Barton v. Curtis, No. 06-3336, __ F.3d __, 2007 U.S. App. LEXIS 18065 (3d

Cir. July 30, 2007) (dismissing interlocutory appeal of Fourth Amendment wrongful-arrest case, in which district

court submitted to the jury the question of defendant’s state of mind in filing a probable-cause affidavit in support of

arrest warrant ). 

 Curley v. Klem, 298 F.3d 271, 278 (3d Cir. 2002). 86

 436 U.S. 658 (1978). 87

- 24 -

whether the officer’s conduct was objectively reasonable. Indeed, in any case where “a genuine 85

issue exists as to any material fact [with respect to the underlying constitutional claim], a decision

on qualified immunity will be premature when there are unresolved disputes of historical fact

relevant to the immunity analysis.” 

86

Here, the Court has already determined that Commissioner Johnson’s state of mind

is a genuine issue of material fact for the jury. The Court also concludes, therefore, that for the

purposes of determining whether Johnson is qualifiedly immune, the question of whether his

decision to discipline Hannan after the PBI hearing is objectively reasonable is inseparable from the

question about his motivation—a matter of historical fact. Thus, the Court will deny the

Commissioner’s motion for summary judgment on the defense of qualified immunity. The

Commissioner will have the opportunity at trial to persuade the jury that his conduct was objectively

reasonable. 

5. Municipal Liability of Defendant City

In Count I of his Complaint, Hannan names the City as a Defendant, alleging

municipal liability for the actions of its officers under the well-known rule of Monell v. Department

of Social Services. In the words of the Third Circuit, under Monell, “a municipality can be sued 87

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 24 of 33
 Brennan v. Norton, 350 F.3d 399, 427 (3d Cir. 2003). 88

 Id. 89

 Pembaur v. City of Cincinatti, 475 U.S. 469, 483 (1986). 90

 City of St. Louis v. Praprotnik, 485 U.S. 112, 118 (1988). 91

- 25 -

directly under § 1983 if it is alleged to have caused a constitutional tort through a policy, ordinance,

regulation or officially adopted decision that has been promulgated by the municipality’s officers.”88

Additionally, liability attaches “for a municipality’s constitutional violations resulting from

governmental custom even though such custom has not been formally approved via the official

decision making channels.” 

89

Here, Hannan claims that Commissioner Johnson’s act of transferring him and later

suspending him constitutes an unconstitutional policy of the City, such that the City should be liable

to him. Though seemingly counterintuitive, it is nonetheless true that even a single act of a highranking public official can constitute an official policy of a municipality, provided that the public

official is “responsible for establishing final government policy respecting such activity[.]”90

Accordingly, Hannan contends, because Commissioner Johnson has final policymaking authority,

the transfer and suspension are policy decisions attributable to the City.

Hannan’s arguments that Commissioner Johnson has such final policymaking

authority, however, are unpersuasive. Under Supreme Court precedent, “whether a particular

official has ‘final policymaking authority’ is a question of state law.” Therefore, Hannan’s burden

91

of production to survive summary judgment on this claim must include at a minimum some state or

municipal legal authority describing the source and nature of Commissioner Johnson’s disciplinary

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 25 of 33
 See, e.g., LaVerdure v. County of Montgomery, 324 F.3d 123, 125 (3d Cir. 2003) (single member of 92

County Board of Commissioners did not have final policymaking authority to bind the municipal defendant, because

under a Pennsylvania state statute, only a majority of the three-member board is authorized to establish policy). 

 See Pl.’s Opp’n, at 35. 93

 Brennan, 350 F.3d at 428. 

94

 The Court notes that municipal liability can also flow from an unconstitutional governmental custom. 

95

Hannan does not argue, nor does the Court independently find, that Commissioner Johnson’s acts were a custom that

could properly support a claim for liability against the City.

- 26 -

powers. Hannan simply points to Commissioner Johnson’s deposition testimony, in which he 92

admitted that he is a policymaker. Commissioner Johnson’s statements, however, are not a source

93

of law. This Court will not decide whether the Commissioner has final policymaking authority with

respect to disciplinary matters based solely on his deposition testimony. Hannan has not supplied

the Court with any other authority describing the Commissioner’s powers.

Moreover, based on the undisputed facts, it is clear that Commissioner Johnson’s

discretionary decision to transfer and suspend Hannan were subject to review by an arbitrator. In

fact, the arbitrator (empowered by a collective-bargaining agreement between the City and the police

union) reversed the Commissioner’s disciplinary actions. The Third Circuit has held that “if a

municipal employee’s decision is subject to review, even discretionary review, it is not final and that

employee is therefore not a policymaker for purposes of imposing municipal liability under

§ 1983.” Applying this rule, the Court concludes that as a matter of law, Commissioner Johnson’s 94

discretionary decision to transfer and suspend Johnson cannot be the basis for municipal liability

against the City. Therefore, the City is entitled to judgment as a matter of law on Hannan’s Monell 95

claim. 

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 26 of 33
 Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir. 2006) (internal quotation and citation omitted). 96

 Pl.’s Opp’n [Doc. # 30], at 13–15. 97

- 27 -

6. Claim under 42 U.S.C. § 1985(3)

To establish a violation of 42 U.S.C. § 1985(3), a plaintiff must show:

(1) a conspiracy; (2) motivated by a racial or class based

discriminatory animus designed to deprive, directly or indirectly, any

person or class of persons to the equal protection of the laws; (3) an

act in furtherance of the conspiracy; and (4) an injury to person or

property or the deprivation of any right or privilege of a citizen of the

United States.96

The chain of events that purportedly establishes this claim does not reveal any racial or class-based

discriminatory animus. Hannan’s evidence simply boils down to one fact: that he is Caucasian, and

the top brass in the Department is African-American. 

In his brief, he spends three pages alluding to conversations that occurred among

Commissioner Johnson, Inspector Blackburn, and Deputy Commissioner Mitchell, after the Fort

Indiantown Gap incident. Hannan also refers to Defendant Byrd, whose only involvement in the 97

events is her signature on Hannan’s suspension order. Notably, Hannan does not explain how these

conversations, taken as a whole, demonstrate racial or class-based discriminatory animus. No matter

how strong Hannan’s “hunch” may be that he was a target based on his race, he may not manufacture

a jury-triable issue based merely on the fact that African-American decisionmakers may have

decided to discipline him behind closed doors. Therefore, the Court will enter summary judgment

in favor of Defendants on this claim as well. 

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 27 of 33
 Compl. ¶ 48. 

98

 Compl. ¶ 87. The Court presumes that this is a reference to the Health Insurance Portability and 99

Accountability Act of 1996 (“HIPAA”), Pub. L. 104-191, 110 Stat. 1936 (codified in scattered sections of Titles 18,

26, 29, and 42 of the U.S. Code).

 50 P.S. § 7111. 

100

 Id. § 7111(a). 101

- 28 -

7. State-law claims

a. Pennsylvania Mental Health Procedures Act

In his Complaint, Hannan alleges that he sought medical care for emotional distress

arising out of his transfer and suspension, and that “he was also ordered to enter a hospital for mental

treatment for the situational depression.” Hannan also alleges that the Defendants “depriv[ed him 98

of his] property privacy rights by releasing without consent, privilege or authority the Plaintiff’s

medical and mental health information and in violation of HIPPA [sic].”99

In the summary-judgment briefs, however, the parties do not address HIPAA, or any

other federal statute. Rather, they discuss Section 7111 of the Pennsylvania Mental Health

Procedures Act. That statute provides that “[a]ll documents concerning persons in treatment shall 100

be kept confidential and, without the person’s written consent, may not be released or their contents

disclosed to anyone except . . . [list of four exceptions].” Thus, Hannan, with the Defendant’s

101

implied consent, appears to have converted this claim into a claim for relief under a Pennsylvania

statute. 

Frankly, the arguments surrounding this claim for relief are beset with the same

problems that the Court has struggled with throughout the resolution of this motion for summary

judgment, but to a greater degree. The Plaintiff has not clearly established the facts relevant to this

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 28 of 33
 Pl.’s Exs. in Support of Undisputed Facts [Doc. # 31], Ex. 19. 102

 410 U.S. 113 (1973). 103

 Hoy v. Angelone, 554 Pa. 134, 151 (1998) (quoting Restatement (Second) of Torts § 46(1) (1965)).

104

- 29 -

claim. Neither Plaintiff nor Defendants have explained the governing law to the Court, nor how it

applies to the parties in this case. The Court is left with the text of a statute, an uncited police report

(which the Court found only after sifting through an exhibit binder), the handwritten text of which

is only partially legible, and legal arguments that ramble from the Supreme Court’s surveillance 102

jurisprudence under the Fourth Amendment, to the meaning of privacy under Roe v. Wade. 

103

Hannan does not precisely describe the course of events, and the law’s applicability

to those facts to establish liability on the part of the Defendants. Hannan does not state who wrote

the police report, who released it, or who saw it. Therefore, the Court finds this cause of action

unintelligible, and unfit for resolution by a jury. The court will enter judgment as a matter of law

in favor of Defendants on this claim. 

 

b. Intentional Infliction of Emotional Distress

Lastly, Hannan seeks damages for intentional infliction of emotional distress. Under

Pennsylvania law, “‘[o]ne who byextreme and outrageous conduct intentionally or recklessly causes

severe emotional distress to another is subject to liability for such emotional distress, and if bodily

harm to the other results from it, for such bodily harm.’” The Pennsylvania courts have been 104

reluctant to allow recovery under this theory of relief. One court has noted, “the conduct must be

so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency,

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 29 of 33
 Buczek v. First Nat’l Bank of Mifflintown, 366 Pa. Super. 551, 558 (1987). 105

 Hoy, 554 Pa. at 151 (quoting Restatement (Second) of Torts § 46 cmt. d (1965)).

106

 Id. 107

- 30 -

and to be regarded as atrocious, and utterly intolerable in a civilized society.” Additionally, “it has 105

not been enough that the defendant has acted with intent which is tortious or even criminal, or that

he has intended to inflict emotional distress, or even that his conduct has been characterized by

‘malice,’ or a degree of aggravation that would entitle the plaintiff to punitive damages for another

tort.”106

The Pennsylvania Supreme Court’s decision in Hoy v. Angelone summarizes this area

of the law as follows:

Cases which have found a sufficient basis for a cause of action of

intentional infliction of emotional distress have had presented only

the most egregious conduct. See e.g., Papieves v. Lawrence, 437 Pa.

373, 263 A.2d 118 (1970) (defendant, after striking and killing

plaintiff's son with automobile, and after failing to notify authorities

or seek medical assistance, buried body in a field where discovered

two months later and returned to parents (recognizing but not

adopting section 46)); Banyas v. Lower Bucks Hospital, 293 Pa.

Super. 122, 437 A.2d 1236 (1981) (defendants intentionally

fabricated records to suggest that plaintiff had killed a third party

which led to plaintiff being indicted for homicide); Chuy v.

Philadelphia Eagles Football Club, 595 F.2d 1265 (3d Cir. 1979)

(defendant’s team physician released to press information that

plaintiff was suffering from fatal disease, when physician knew such

information was false). 

107

Based on this, the Court concludes that Hannan cannot, as a matter of law, prevail on a claim for

intentional infliction of emotional distress. Even if he persuades the jury that Commissioner Johnson

disciplined him more severely for exercising his First Amendment rights, the Court does not consider

this to be in the category of “the most egregious conduct.” Again, the Pennsylvania courts have

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 30 of 33
 Id. at 152. 

108

- 31 -

limited this tort to cover “only the most clearly desperate and ultra extreme conduct.” The three

108

cases described by the Pennsylvania Supreme Court in Hoy are in an altogether different category

than the facts presented here. Secretly burying a dead body in a field without notifiying the

authorities, or intentionally causing an innocent person to be criminally indicted, are of a degree of

outrageousness that far exceeds the facts of this case. Whereas retaliation in the workplace is

unlawful and potentially harmful, not all claims of retaliation surpass the bounds of the everyday.

This Court finds it highly unlikely that the Pennsylvania Supreme Court would find

these facts sufficiently extreme and outrageous to support liability under this theory. Therefore, the

Court is unwilling to stretch the bounds of established Pennsylvania law by allowing this claim to

be presented to the jury. Accordingly, the Court will enter summary judgment in favor of the

Defendants on this claim as well. 

 

CONCLUSION

For the foregoing reasons, the Court will enter summary judgment in favor of

Defendants Blackburn, Byrd, and the City of Philadelphia as to all Counts of Hannan’s Complaint.

The Court will deny Commissioner Johnson’s Motion for Summary Judgment as to Count V

(Retaliation), and grant the Commissioner’s Motion for Summary Judgment on all other counts. 

An appropriate Order follows. 

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 31 of 33
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

:

JEFFERY HANNAN, :

:

Plaintiff, :

vs. : CIVIL NO. 05-2863

:

CITY OF PHILADELPHIA, et al., :

:

Defendants. :

__________________________________________:

ORDER

AND NOW, this 22nd day of August 2007, upon consideration of the

Defendants’ Motion for Summary Judgment [Doc. # 26], the Plaintiff’s Brief in Opposition

thereto [Doc. # 30], the Defendants’ Reply Brief [Doc. # 32], and the Plaintiff’s Sur-reply Brief

[Doc. # 33], and the applicable law, it is hereby

ORDERED, that the Defendants’ Motion for Summary Judgment [Doc. # 26] is

GRANTED IN PART and DENIED IN PART; it is further

ORDERED, that Judgment is ENTERED in favor of Defendants Blackburn,

Byrd, and the City of Philadelphia, on all counts of the Plaintiff’s Complaint; it is further

ORDERED, that Judgment is ENTERED in favor of Defendant Commissioner

Johnson on Counts I, II, III, IV, and VI of the Complaint ONLY; and it is further

ORDERED, that Commissioner Johnson’s Motion for Summary Judgment is

DENIED with respect to Count V of Plaintiff’s Complaint. 

The matter will be set down for trial at a future date. 

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 32 of 33
BY THE COURT:

/s/ Cynthia M. Rufe

________________________

CYNTHIA M. RUFE, J. 

Case 2:05-cv-02863-CMR Document 36 Filed 08/22/07 Page 33 of 33